This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Mark James Pagenkopf,



Filed March 8, 2005

Reversed and remanded

Hudson, Judge


Clay County District Court

File No. K3-03-1773


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Lisa Borgen, Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, Minnesota 56560 (for respondent)


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3097 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Mark James Pagenkopf pleaded guilty to two counts of second-degree possession with intent to sell, in violation of Minn. Stat. § 152.022, subd. 1(1), (3) (2002), and was subsequently sentenced to concurrent terms of 44 and 54 months.  Appellant now challenges his sentence, arguing that the district court violated Minn. Stat. § 609.035 (2002), which prohibits multiple sentences for offenses arising out of the same behavioral incident, when it sentenced him on both possession charges.  The state argues that, because appellant’s counsel did not object at the sentencing hearing, appellant should be barred from seeking relief here.  Because appellant did not need to object at the time of sentencing in order to preserve his right to challenge his sentence, and because appellant’s concurrent sentences violate Minn. Stat. § 609.035, we reverse and remand for resentencing.


            Appellant was arrested on September 24, 2003, after police searched his basement apartment and found 5 bags of methamphetamine, chemicals used in the manufacture of methamphetamine, and 13 bags of hallucinogenic mushrooms.  Appellant was originally charged with first-degree manufacture of methamphetamine, second-degree possession of a controlled substance with intent to sell, two counts of third-degree sale of a controlled substance, and child endangerment.  Before trial, the state amended the complaint, and appellant pleaded guilty to two counts of second-degree possession of a controlled substance with intent to sell.  The first count was for possession of methamphetamine, and the second was for possession of hallucinogenic (psilocin) mushrooms.

            At appellant’s sentencing hearing, the district court stated that appellant pleaded guilty to “controlled substance second, possession of meth; and controlled substance third, sale of meth.”  Appellant was then sentenced to concurrent terms of 44 and 54 months.  Appellant’s counsel made no objection to the district court’s apparent mischaracterization of the charges that appellant pleaded guilty to, nor did he object to appellant’s concurrent sentences.  This appeal follows.



            The state argues that appellant forfeited his right to challenge his sentence here because he failed to object at the district court.  The state also argues that appellant has not argued plain error on appeal and has therefore waived any such argument.  We disagree.  In Minnesota, a “defendant does not waive relief from multiple sentences . . . arising from the same behavioral incident by failing to raise the issues at the time of sentencing.”  State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992); see also State v. White, 300 Minn. 99, 106, 219 N.W.2d 89, 93 (1974) (stating that “the prohibition against double punishment cannot be waived”).  And while defendants challenging their sentences are encouraged “to petition for relief in the district court first, thereby possibly avoiding the need for an appeal,” failure to do so does not constitute waiver or forfeiture of the right to appeal a sentence that violates Minn. Stat. § 609.035 (2002).  Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984).  Accordingly, we address the merits of appellant’s argument. 


Appellant argues that his sentence was imposed in violation of Minn. Stat. § 609.035 (2002).  Under that statute, “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.”  Minn. Stat. § 609.035, subd. 1.  A person’s conduct constitutes more than one offense within the meaning of the statute if the offenses were committed as part of a “single behavioral incident.”  State v. Norregaard, 384 N.W.2d 449, 449 (Minn. 1986).  On established facts, whether offenses are part of a single behavioral incident presents a question of law, which this court reviews de novo.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).  In addition, the prohibition on multiple sentences for conduct arising out of a single behavioral incident applies even if a court imposes concurrent sentences.  Norregaard, 384 N.W.2d at 449. 

Whether multiple offenses arose from a single behavioral incident depends on the facts and circumstances of each case.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  The required factors for analyzing whether the charges arose from a single behavioral incident are the unities of time and place, and whether the conduct was directed towards achieving a single criminal objective.  State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525 (1966).  It is the state’s burden to establish that multiple crimes are not part of a single behavioral incident.  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).

Here, the state argues that, “[w]hile the two crimes occurred in the same time and place . . . their intended distribution was not to be at the same time and place.”  The state attempts to buttress this theory with the fact that police found 5 bags of methamphetamine and 13 bags of mushrooms in their search of appellant’s apartment.  From this fact, the state infers that “more people were involved in the arrangement for buying mushrooms than in the arrangement for buying methamphetamine,” and therefore “different people were necessarily involved in the respective transactions for each drug.”  Finally, the state argues that, “because of the different people involved, the methamphetamine and mushroom transactions had different [criminal] objectives.” 

The state’s lack of evidentiary support for its string of inferences may be explained by the fact that appellant pleaded guilty prior to trial.  This does not, however, relieve the state of its burden to establish that multiple crimes are not a single behavioral incident.  Barnes, 618 N.W.2d at 813.  We conclude that, on this record, the state has failed to meet this burden.  See id. (holding that, when the appellant was convicted for possession with intent to sell cocaine and marijuana, and both substances were found in his bedroom packaged for sale, “[t]he criminal objective in possessing them [was] the same”); see also State v. Reese, 446 N.W.2d 173, 180 (Minn. App. 1989) (noting that possession of two controlled substances at the same time and place, for personal use, constitutes a single behavioral incident), review denied (Minn. Nov. 15, 1989); State v. Zimmerman, 352 N.W.2d 452, 454 (Minn. App. 1984) (holding that a defendant’s simultaneous possession of marijuana and cocaine was a single behavioral incident).  Accordingly, we reverse appellant’s sentence and remand to the district court for resentencing.

Reversed and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.